West v. Portfolio Recovery Associates, Llc.

MOTION for summary judgment

M.D. Fla.December 16, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION NICOLE WEST, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant. / CASE NO.: 8:15-cv-01107-RAL-AEP DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, Portfolio Recovery Associates, LLC, by and through its undersigned attorneys and pursuant to Local Rule 3.01 and Rule 56 of the Federal Rules of Civil Procedure, hereby files this, its Motion for Summary Judgment, and in support thereof, states as follows: INTRODUCTION The Amended Complaint (Dkt. # 12) alleges specific violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"), and the Florida Consumer Collection Practices Act, Fla. Stat. §§ 559.55, et seq. ("FCCPA"). Count I alleges that Defendant did not send Plaintiff a validation notice in accordance with section 1692g of the FDCPA ("Validation Notice"). Not only is this claim false, it is false according to Plaintiff's own allegations. Paragraph 31 of the Amended Complaint admits: "Defendant did issue initiating correspondence to Plaintiff giving Plaintiff an opportunity to challenge the validity of the debt that Defendant alleged against Plaintiff as required by law, 15 U.S.C. 1692g." Counts II and III are more troubling. Both allege that Defendant violated the FDCPA and FCCPA by continuing to collect a debt from Plaintiff after receipt of a cease and desist letter Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 1 of 22 PageID 125 2 dated October 8, 2013. However, the post-marked envelope reveals that Plaintiff's letter was not mailed until nearly five months later on March 14, 2014. All collection activity on Plaintiff's accounts was shut down in January 2014, well before Plaintiff's letter was put into the mail. Plaintiff's claims arising under the FDCPA are also barred by the applicable one-year statute of limitations. 15 U.S.C. § 1692k(d). The last time Defendant attempted to contact Plaintiff was an unanswered telephone call on January 10, 2014, however, this lawsuit was not filed until more than one year later on May 7, 2015. Additionally, Plaintiff has not, and cannot, come forward with record evidence demonstrating that she was the subject of collection activity arising from a "debt" or "consumer debt," incurred primarily for personal, family, or household purposes, which is an essential element to all of her claims. Finally, even if Defendant did violate the FDCPA or FCCPA, any such violation would have been unintentional and the result of a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors. Therefore, even if Plaintiff had the ability to prove one of the violations alleged in the Amended Complaint, Defendant would not be liable for such violation as a matter of law. 15 U.S.C. § 1692k(c); Fla. Stat. § 559.77(3). Accordingly, the pleadings and record evidence establish that there are no genuine issues as to any material fact and that Defendant is entitled to summary judgment on all claims alleged in the Amended Complaint a matter of law. Fed. R. Civ. P. 56. UNDISPUTED MATERIAL FACTS 1 1. The undisputed material facts of this case are as follows: Plaintiff alleges that Defendant attempted to collect a debt from her in violation of the FDCPA and FCCPA. Plaintiff 1 Defendant's Affidavit in support of this motion is attached hereto as Exhibit A. Plaintiff's deposition transcript is attached hereto as Exhibit B. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 2 of 22 PageID 126 3 testified during her deposition that she does not know what debt Defendant was attempting to collect from her or what the debt was used for. (West depo. p. 16, lines 6-13.) 2. Plaintiff alleges that Defendant did not send her a Validation Notice in connection with her unpaid account balances. (See Amend. Compl. ¶¶ 63-65.) This allegation has no merit. (Sage Aff. ¶¶ 8-11.) 3. The Amended Complaint expressly admits Defendant sent Validation Notices in compliance with section 1692g of the FDCPA. (Amend. Compl. ¶ 31.) And just as Plaintiff alleges, Validation Notices were in fact sent to Plaintiff in accordance with the FDCPA. (Sage Aff. ¶¶ 8-11.) 4. The Amended Complaint further alleges that Plaintiff "issued cease and desist instructions to Defendant on or about October 8, 2013" (the "Letter"), but that "Defendant continued to contact Plaintiff in regards to the alleged debt that Plaintiff had disputed." (Amend. Compl. ¶¶ 8-9.) 5. A true and correct copy of the Letter, as well as the envelope in which Plaintiff mailed the Letter to Defendant (the "Envelope"), are attached hereto as Exhibit C. (See West depo. Ex. 1 and 5; see also West Depo. Ex. 2 and 4; see also West depo. p. 9, lines 12-13; p. 11, lines 6-15; p. 19, lines 14-19; p. 20, lines 20-25; p. 22, line 25; p. 23, lines 1-2; see also Sage Aff. ¶ 13.) 6. The Letter is dated October 8, 2013. (Exhibit C.) However, it was not mailed on that date. Contrary to the allegations of the Amended Complaint, the post-marked Envelope reveals that the Letter was not mailed to Defendant until more than 5 months later on Friday, March 14, 2014. (Exhibit C.) Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 3 of 22 PageID 127 4 7. Plaintiff admits that the Envelope is the envelope that she used to mail the Letter to Defendant. (West depo. p. 11, lines 6-15; p. 19, lines 14-19; p. 22, line 25; p. 23, lines 1-2.) Plaintiff also testified during her deposition that she does not remember the date she mailed the Letter to Defendant. (See West depo. p. 19, lines 20-25; p. 20, lines 1-3; p. 21, lines 5-7, 19.) Plaintiff has also failed to produce any documents during discovery that would contradict the fact that the Letter was mailed on March 14, 2014. 8. Furthermore, Defendant's records show that the Envelope was post-marked March 14, 2014, and that Defendant received the Letter on March 19, 2014. (Sage Aff. ¶ 13.) 9. Accordingly, it is undisputable that the Letter was not mailed on the date indicated in the Amended Complaint, but was instead mailed five months later on March 14, 2014 and received on March 19, 2014. (Compare Amend. Compl. ¶ 8 with Exhibits B and C.) 10. Contrary to the allegations of the Amended Complaint, Plaintiff testified during her deposition that she does not remember receiving any telephone calls from Defendant after she sent the Letter. She also has no documents or notes that would establish whether she received any calls from Defendant after sending the Letter. (West depo. p. 12, lines 17-25; p. 13, lines 1- 12; p. 15, lines 10-15.) 11. Defendant's records also establish that Plaintiff did not provide any "cease and desist instructions" to it on October 8, 2013. The Letter, which was not received until March 19, 2014, was the first time that Plaintiff directly asked Defendant to stop contacting her. (Sage Aff. ¶¶ 13-14.) 12. There is no record evidence demonstrating that Defendant continued to contact Plaintiff after receipt of her Letter. To the contrary, Defendant's records establish that it did not continue contacting Plaintiff after receiving her Letter. The last letter Defendant sent to Plaintiff Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 4 of 22 PageID 128 5 was on August 2, 2013, and the last telephone call to Plaintiff was on January 10, 2014, which went unanswered. (Sage Aff. ¶¶ 12; 15.) 13. One of the reasons that all collection efforts were shut down before receiving the Letter was because Defendant had previously received a draft complaint from counsel for Plaintiff's office on January 27, 2014. (Sage Aff. ¶¶ 12; 15.) Upon receipt of the draft complaint, Plaintiff's accounts were notated and all collection activity was shut down that same day. (Id.) 14. Defendant served its First Request for Admissions to Plaintiff on July 31, 2015, a true and correct copy of which is attached hereto as Exhibit D. Plaintiff did not respond within 30 days or seek an extension of time, and as a result, all of Defendant's requests are deemed admitted. Fed. R. Civ. P. 36(a)(3). Among other things, Plaintiff admits: i. That she has no documents evidencing that the subject debt was incurred primarily for personal, family, or household purposes. (Exhibit D, # 5-6.) ii. That Defendant did not violate the FDCPA or FCCPA as alleged in the Complaint. (Exhibit D, # 8.) iii. That the "cease and desist instructions" described in the Amended Complaint were a single letter that was mailed to Defendant on March 19, 2014. (Exhibit D, # 12, 15.) iv. That the Letter was not sent to Defendant on October 8, 2013. (Exhibit D, # 13.) v. That the Letter was not sent to Defendant in the year 2013. (Exhibit D, # 14.) 15. Any violation of the FDCPA or FCCPA with respect to Plaintiff (which is denied), would have been unintentional and the result of a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors. (Sage Aff. ¶¶ 13-17.) Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 5 of 22 PageID 129 6 16. Defendant maintains policies and procedures reasonably designed to avoid the types of FDCPA and FCCPA violations alleged in the Complaint. (Sage Aff. ¶¶ 16-20.) 17. Among other things, Defendant's policy is to mail a Validation Notice on every new account in accordance with section 1692g of the FDCPA. This policy is enforced, in part, by Defendant's computer systems, which prevent collections on a new account until at least 30 days after the Validation Notice has been sent and no dispute has been received. (Sage Aff. ¶ 17.) 18. If an account is disputed, PRA's policy and procedure is to mail the debtor validation information pertaining to his or her account in accordance with section 1692g of the FDCPA, and to shut down collections on the account until the dispute has been resolved. (Sage Aff. ¶ 18.) 19. Defendant also maintains policies and procedures designed to avoid harassment. Among other things, Defendant does not continue to communicate with a debtor upon receipt of a written cease and desist letter. Defendant's policy and procedure is to notate the debtor's electronic account file upon receipt of such a letter, which prevents any further collection calls or letters to be sent directly to the debtor with respect to that account. (Sage Aff. ¶ 19.) 20. Defendant's account representatives undergo regular training and testing on compliance with the FDCPA and similar state collection statutes, including training and testing on the policies and procedures described herein. (Sage Aff. ¶ 20.) 21. Based on these undisputed material facts ("UMF"), and as explained in more detail in the Memorandum of Law below, there are no genuine issues as to any material fact and Defendant is entitled to summary judgment on all Counts alleged against it in the Amended Complaint as a matter of law. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 6 of 22 PageID 130 7 MEMORANDUM OF LAW I. Summary judgment standard of review Summary judgment must be entered when the record evidence establishes that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 2 The non-moving plaintiff is then required to come forward and present affirmative evidence that is sufficient to establish the existence of each element of her case. Id. Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element that is essential to that party's case, and for which that party will bear the burden of proof at trial. Id.; Certain Interested Underwriters at Lloyd's London Subscribing to Certificate of Ins. No. 9214 v. Halikoytakis, No. 8:09–CV–1081–T–17TGW, 2011 WL 1296816, at * 1 (M.D. Fla. March 31, 2011). Accordingly, a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment. Rather, the plaintiff "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000); Perkins v. Sch. Bd. of Pinellas County, 902 F. Supp. 1503, 1505 (M.D. Fla. 1995); see also Celotex, 447 U.S. at 324; Shurick v. Boeing Co., No. 6:07–cv–1974–Orl–31GJK, 2010 WL 258788, at * 1 (M.D. Fla. Jan. 20, 2010); Aldabblan v. Festive Pizza, Ltd., 380 F.Supp.2d 1345, 1353 (S.D. Fla. 2005). 2 Although the moving party bears the burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323. The moving party's burden may be met simply by "pointing out…that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 7 of 22 PageID 131 8 To successfully oppose a motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has, if admissible, would convince a trier of fact to accept its version of the events. Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005); see also Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 658 (11th Cir. 1984) ("[t]he party adverse to the movant for summary judgment cannot rest on his pleadings to present an issue of fact….a party moved against [must] respond with affidavits, depositions, or otherwise, in order to reflect that there are material facts which must be presented to a jury for resolution"). Further, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liverty Lobby, Inc., 477 U.S. 242, 248 (1986). "Speculation does not create a genuine issue of fact, instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995). II. There are no genuine issues as to any material fact, and Defendant is entitled to summary judgment on Count I of the Amended Complaint as a matter of law Count I of the Amended Complaint alleges that Defendant violated section 1692g of the FDCPA. In pertinent part, section 1692g states: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 8 of 22 PageID 132 9 (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. (b) Disputed debts If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor. 15 U.S.C. §§ 1692(g)(a)-(b). a. Defendant is entitled to summary judgment on Plaintiff's claim arising under section 1692g(a) of the FDCPA The Amended Complaint attempts to allege that Defendant violated section 1692g(a) by collecting a debt without sending her a Validation Notice. (See Amend. Compl. ¶¶ 63-65.) However, Plaintiff admits that she received a Validation Notice, and Defendant has submitted Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 9 of 22 PageID 133 10 record evidence corroborating that Validation Notices were in fact sent to Plaintiff on all of her accounts. Therefore, it is undisputable that Defendant mailed Validation Notices to Plaintiff in accordance with the FDCPA. (UMF ¶¶ 2-3.) Accordingly, there are no genuine issues as to any material fact and Defendant is entitled to summary judgment with respect to any claim arising under section 1692g(a) of the FDCPA. b. To the extent Plaintiff is attempting to assert a claim arising under section 1692g(b) of the FDCPA, Defendant is entitled to summary judgment on that claim as well The Amended Complaint makes reference section 1692g(b), however, because Plaintiff has not alleged sufficient facts to support a claim under section 1692g(b), it is not clear whether Plaintiff is also attempting to assert a claim under that subsection. Regardless, to the extent Plaintiff is attempting to assert a claim under section 1692g(b), such a claim would be completely without merit. As an initial matter, the Amended Complaint does not allege that Plaintiff requested validation of any debt in writing, let alone within 30 days after receipt of a Validation Notice, as required to state a claim under section 1692g(b). See 15 U.S.C. § 1692g(b). Additionally, the plain language of the Letter does not request validation of any debt. (See Exhibit C.) But even if it did, Defendant did not attempt to contact Plaintiff after receipt of the Letter, and therefore could not have violated section 1692g(b) as a matter of law. (UMF ¶¶ 10-14.) See Jang v. A.M. Miller & Associates, 122 F.3d 480, 483 (7th Cir. 1997) (holding that section 1692g(b) "gives debt collectors two options when they receive requests for validation. They may provide the requested validations and continue their debt collecting activities, or they may cease all collection activities"). Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 10 of 22 PageID 134 11 Accordingly, there are no genuine issues as to any material fact and Defendant is entitled to summary judgment with respect to any claim arising under section 1692g(b) of the FDCPA. III. There are no genuine issues as to any material fact, and Defendant is entitled to summary judgment on Counts II and III of the Amended Complaint as a matter of law Counts II and III of the Amended Complaint allege that Defendant violated the FDCPA and FCCPA by continuing to engage in debt collection activities after receipt of cease and desist instructions on October 8, 2013. Specifically, Count II alleges that Defendant violated section 1692d of the FDCPA, which states: "A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Count III alleges that Defendant violated section 559.72(7) of the FCCPA, which states: In collecting consumer debts, no person shall: (7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family. Fla. Stat. § 559.72(7). The FCCPA mandates that, in interpreting its provisions, courts must give "great weight and due consideration" to the federal courts' interpretations of the FDCPA. Fla. Stat. § 559.77(5). Sections 1692d and 559.72(7) are similar, but not identical. In order to establish a violation of section 559.72(7) of the FCCPA, Plaintiff must prove that Defendant engaged in "willful" conduct. E.g., Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1362 (S.D. Fla. 2000) ("It is clear that the FCCPA requires an allegation of knowledge or intent by the debt collector in order to state a cause of action"); Lamb v. Household Finance Corp. III (In re Lamb), 409 B.R. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 11 of 22 PageID 135 12 534, 541 (Bankr. N.D. Fla. 2009) ("The FCCPA requires an allegation of knowledge or intent by the debt collector in order to state a cause of action"). Plaintiff cannot sustain the claims she has pled in her Amended Complaint because, as demonstrated by the record evidence, they are not true. Contrary to Plaintiff's allegations, she did not provide cease and desist instructions to Defendant on October 8, 2013. (UMF ¶¶ 5-11.) The Letter was the first time that Plaintiff directly asked Defendant to stop contacting her, and the Letter was not mailed until more than 5 months later on March 14, 2014 and received on March 19, 2014. (UMF ¶ 11.) Defendant did not continue to contact Plaintiff after receipt of her Letter on March 19, 2014. (UMF ¶¶ 10-14.) The very last contact Defendant made with Plaintiff in an attempt to collect a debt was an unanswered telephone call on January 10, 2014, months before the Letter was put into the mail. (UMF ¶ 12.) Accordingly, there are no genuine issues as to any material fact and Defendant is entitled to summary judgment with respect to Counts II and III of the Amended Complaint as a matter of law. IV. Defendant is additionally entitled to summary judgment on all claims arising under the FDCPA because they are barred by the applicable one-year statute of limitations Even if Defendant violated the FDCPA as alleged in the Amended Complaint, any lawsuit arising from said violations would be barred by the applicable one-year statute of limitations. 15 U.S.C. § 1692k(d). The application of the statute of limitations is clear from the record evidence. The last time Defendant attempted to contact Plaintiff was an unanswered telephone call on January 10, 2014. However, this lawsuit was not filed until more than one year later on May 7, 2015. Therefore, all of Plaintiff's claims FDCPA claims are time-barred. E.g., 15 U.S.C. § 1692k(d); Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 12 of 22 PageID 136 13 Mammen v. Bronson & Migliaccio, LLP, 715 F.Supp.2d 1210, 1216 (M.D. Fla. 2009) ("Claims under the FDCPA must be brought 'within one year from the date on which the violation occurs.' This case was filed on October 27, 2005. Any FDCPA claim based upon acts or omissions occurring before October 27, 2004 is time-barred"). With respect to Plaintiff's claim arising under section 1692g, the application of the statute of limitations is additionally clear from the face of the Amended Complaint, which indicates that Defendant engaged in debt collection activity prior to October 8, 2013. Therefore, according to Plaintiff's own allegations, the statute of limitations on her section 1692g(a) claim ran, at the latest, on October 13, 2014, and this lawsuit was not initiated until seven months later on May 7, 2015. See 15 U.S.C. § 1692g(a) (requiring notice to be sent "[w]ithin 5 days after the initial communication with a consumer in connection with the collection of any debt"). Accordingly, there are no genuine issues as to any material fact and Defendant is entitled to summary judgment on all FDCPA claims because they are barred by the statute of limitations. V. Defendant is additionally entitled to summary judgment on all Counts because there is no record evidence demonstrating that Plaintiff was the subject of collection activity arising from a "consumer debt" incurred primary for personal, family, or household purposes Defendant is additionally entitled to summary judgment on all claims alleged in the Amended Complaint because Plaintiff has not alleged or come forward with record evidence demonstrating that she was the subject of collection activity arising from a "debt" or "consumer debt," which is an essential element to all of her claims. By their express terms, both the FDCPA and FCCPA only apply to the collection of "debts" or "consumer debts," meaning obligations incurred "primarily for personal, family, or household purposes." 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). Thus, in order to recover under both the FDCPA and FCCPA, Plaintiff "must make a threshold showing that the money Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 13 of 22 PageID 137 14 being collected qualifies as a [consumer debt]." Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 837 (11th Cir. 2010); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir. 1987). Merely demonstrating that money was allegedly owed is insufficient to satisfy this threshold requirement; to survive summary judgment, Plaintiff bears the burden of coming forward with specific record evidence demonstrating that Defendant attempted to collect a debt from her that qualifies as a "consumer debt" under the FDCPA and FCCPA. E.g., Oppenheim, 627 F.3d at 837; Garcia v. LVNV Funding, LLC, No. A-08-CA-514-LY, 2009 WL 3079962, at *4-5 (W.D. Tex. Sept. 18, 2009). "Whether a debt is a consumer debt is determined by the use of loan proceeds by the borrower and not by the motive or intent of the lender." Garcia, 2009 WL 3079962, at *3. Here, the Amended Complaint does not allege that Defendant attempted to collect a debt incurred primarily for personal, family, or household purposes, and therefore fails to state a claim under the FDCPA or FCCPA. See Lutman v. Harvard Collection Servs., Inc., No. 2:15– cv–257–FtM–38CM, 2015 WL 4664296, at *3 (M.D. Fla. Aug. 6, 2015) (slip copy). But even if Plaintiff's claims were properly pleaded, Defendant would still be entitled to summary judgment because the record is devoid of any evidence demonstrating that Defendant attempted to collect a "consumer debt." Celotex Corp., 477 U.S. at 322 (holding that summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Additionally, Plaintiff admitted through discovery that she has no knowledge or documents that would establish whether the subject account was incurred primarily for personal, family, or household purposes (UMF ¶¶ 1; 14), and therefore has no ability to come forward with record evidence on this issue to survive summary judgment. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 14 of 22 PageID 138 15 In sum, Plaintiff bears the burden of demonstrating that she was the subject of collection activity arising from a "consumer debt," but has failed to sufficiently plead this essential element in her Amended Complaint, and has additionally failed to come forward with any record evidence that would create a genuine issue of material fact for trial. To the contrary, Plaintiff apparently has no information on this essential element of her claims (UMF ¶¶ 1; 14), and under such circumstances, summary judgment must be entered in Defendant's favor. E.g., Oppenheim, 627 F.3d at 837; Garcia, 2009 WL 3079962, at *4-5; Lutman, 2015 WL 4664296, at *3; Flores v. I.C. Sys., Inc., No. 13-21352-CIV, 2014 WL 1379046, at *4-5 (S.D. Fla. April 8, 2014); Louis v. Portfolio Recovery Associates, LLC, Case No. 9:12-80456-DMM, Omnibus Order (S.D. Fla. Feb. 2, 2013); Holman v. West Valley Collection Services, 60 F.Supp.2d 935, 936 (D.Minn.1999). VI. To the extent Plaintiff is attempting to assert a claim under section 1692c(c) of the FDCPA, Defendant is entitled to summary judgment on that claim as well The Amended Complaint makes reference to section 1692c(c) of the FDCPA, but does not contain a specific Count for relief under that provision. (See Amend. Compl. ¶ 59.) As such, even if Plaintiff intended to seek relief under section 1692c(c), she is not entitled to such relief because she did not properly plead it. But even if Plaintiff intended to seek relief under section 1692c(c) and properly pleaded a claim for relief under that provision, Defendant would still be entitled to summary judgment on that claim as a matter of law. Section 1692c(c) generally prohibits continued communication with a consumer after being notified in writing that the consumer no longer wants to be contacted with respect to a debt. 15 U.S.C. § 1692c(c). Pursuant to the statute, the date on which such notice is mailed is irrelevant, as notice is only "complete upon receipt." Id. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 15 of 22 PageID 139 16 Here, the only writing Defendant received from Plaintiff was the Letter, and it is undisputable that Defendant did not receive the Letter until March 19, 2014 and did not continue contacting Plaintiff after receiving the Letter. (UMF ¶¶ 10-14.) Importantly, Plaintiff cannot contradict the date the Letter was received by Defendant, and that is the only relevant date for purposes of section 1692c(c). Moreover, as explained above, any claim arising under section 1692c(c) would be barred by the applicable one-year statute of limitations. 15 U.S.C. § 1692k(d). Such a claim would also be unsustainable given there is no record evidence establishing that Plaintiff's account qualifies as a "debt" or "consumer debt" as defined by the FDCPA. Accordingly, there are no genuine issues as to any material fact, and to the extent Plaintiff is attempting to plead a claim under section 1692c(c) and such claim is properly pleaded, Defendant would be entitled to summary judgment on that claim as a matter of law. VII. Even if Defendant violated the FDCPA or FCCPA, Defendant is not liable for any such violation because it was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors While the record establishes that no FDCPA or FCCPA violations have been committed, it also establishes that if violations did occur, they would have been unintentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such errors. (See UMF ¶¶ 15-20.) Therefore, even if Plaintiff is able to prove a violation of the FDCPA or FCCPA, Defendant would not liable for such violation and is entitled to summary judgment on this issue. 15 U.S.C. § 1692k(c); Fla. Stat. § 559.77(3). a. Bona fide error standard of review Both the FDCPA and FCCPA contain bona fide error provisions that completely insulate a debt collector from liability. The FDCPA's provision states: Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 16 of 22 PageID 140 17 A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. 15 U.S.C. § 1692k(c). The FCCPA's provision is substantially identical: A person may not be held liable in any action brought under this section if the person shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid such error. Fla. Stat. § 559.77(3). As noted above, in interpreting the FCCPA, due consideration and great weight must be given to the federal court's interpretations of the FDCPA. Fla. Stat. § 559.77(5). The intent prong of the bona fide error defense is a subjective test. E.g., Johnson v. Riddle, 443 F. 3d 723, 728-29 (10th Cir. 2006). To satisfy this prong, a debt collector is only required to show that the FDCPA or FCCPA violation was unintentional, not that the act which led to the violation was unintentional. Id. "In other words, a violation is unintentional for purposes of the…bona fide error defense if the debt collector lacked the specific intent to violate the [FCCPA]." Id.; see also, e.g., Mammen v. Bronson & Migliaccio, LLP, 715 F.Supp.2d 1210, 1214 (M.D. Fla. 2009) ("A violation is considered unintentional if the debt collector can establish lack of specific intent to violate the FDCPA"); Kort v. Diversified Collection Servs., 394 F. 3d 530, 537 (7th Cir. 2005) (holding that the bona fide error defense only requires negation of specific intent); Lewis v. ACB Bus. Servs., Inc., 135 F. 3d 389, 402 (6th Cir. 1998) ("The debt collector must only show that the violation was unintentional, not that the communication itself was unintentional. To hold otherwise would effectively negate the bona fide error defense"); Nielsen v. Dickerson, 307 F.3d 623, 641 (7th Cir.2002) (a debt collector "may avail itself of the bona fide error defense because it had no intent to violate the FDCPA, although its actions were deliberate"). Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 17 of 22 PageID 141 18 The second and third elements of the bona fide error defense, which require a showing that the violation was the result of a bona fide error, and that the debt collector maintained procedures reasonably adapted to avoid such error, are objective inquiries. See e.g., Johnson, 443 F. 3d at 729. The bona fide error element "serves to impose an objective standard of reasonableness upon the asserted unintentional violation." Id. The term "bona fide error" is not defined by either Act, and the case law on the subject has not established any bright-line rules. However, at least one court has defined the term as an "error made in good faith; a genuine mistake, as opposed to a contrived mistake." Kort, 394 F.3d at 538 (citing Black's Law Dictionary 168 (7th ed. 1999)). Categories of bona fide errors include, but are not limited to, "clerical, calculation, computer malfunction and programming, and printing errors." See Jenkins v. Heintz, 124 F.3d 824 (7th Cir. 1997). With respect to the procedures prong, the express language of both Acts only require a debt collector to maintain procedures "reasonably adopted" to avoid the bona fide error at issue. 15 U.S.C. § 1692k(c); Fla. Stat. § 559.77(3). A successful bona fide error defense "does not require debt collectors to take every conceivable precaution to avoid errors; rather, it only requires reasonable precaution." Bacelli, 729 F. Supp.2d at 1333 (quoting Kort, 394 F. 3d at 537); see also Tucker v. CBE Group, Inc., 710 F.Supp.2d 1301, 1306 n. 5 (M.D. Fla. 2010) (stating that "procedures need not be foolproof" in order to sustain a successful bona fide error defense). Procedures as simple as "sending employees and staff to training seminars or subjecting employees and staff to compliance testing" may be reasonably adopted to avoid most errors. See Johnson, 443 F. 3d at 730. b. Defendant is entitled to summary judgment on its bona fide error defense Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 18 of 22 PageID 142 19 Defendant has submitted affidavit testimony stating that it would not have intentionally violated the FDCPA or FCCPA with respect to Plaintiff. (UMF ¶¶ 15-20.) The uncontroverted record evidence also establishes that Defendant maintains policies and procedures that are reasonably adapted to ensure compliance with the statutory sections alleged in the Amended Complaint, and also subjects its account representatives to training and testing to ensure compliance with those policies and procedures. (UMF ¶¶ 15-20.) Plaintiff has not, and cannot, come forward with record evidence to the contrary to create a genuine issue of material fact for trial. As a result, Defendant is entitled to summary judgment on its bona fide error defense as a matter of law. See, e.g., Mammen, 715 F. Supp.2d at 1217. VIII. Defendant is entitled to an award of its reasonable attorneys' fees and costs Both the FDCPA and FCCPA allow for a prevailing defendant to recover its reasonable attorneys' fees and costs where, as here, the lawsuit was brought in bad faith or failed to raise a justiciable issue of law or fact. § 1692k(a)(3); Fla. Stat. § 559.77(2). Therefore, in addition to being entitled to summary judgment on all claims alleged in the Amended Complaint, Defendant is also entitled to recover the reasonable attorneys' fees and costs that it has incurred defending itself against Plaintiff's claims. a. Defendant is entitled to recover its reasonable attorneys' fees and costs because Plaintiff's FDCPA claims were brought in bad faith and for the purpose of harassment In pertinent part, the FDCPA provides: "On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." 15 U.S.C. § 1692k(a)(3). Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 19 of 22 PageID 143 20 The record evidence demonstrates that Plaintiff's FDCPA claims were brought in bad faith and for purposes of harassment. Indeed, the primary allegation underlying Plaintiff's lawsuit was that the Letter was sent on October 8, 2013, when in reality, the Letter was not mailed until more than five (5) months later on March 14, 2014. Even after Plaintiff was questioned on this discrepancy during her deposition, she did not seek leave to amend the Amended Complaint to fix the false statements. Instead, she continued to prosecute this claim based on allegations that she knew were false. Additionally, Plaintiff's FDCPA claims were clearly without merit at the time they were asserted and should have never been asserted in the first instance. Plaintiff knew that Defendant did not continue to contact her after receiving her Letter, but she initiated this lawsuit anyway. Plaintiff also knew, or should have known, that all of her FDCPA claims were outside of the statute of limitations, but asserted them anyway. In sum, Plaintiff asserted FDCPA claims knowing that they had zero merit, supported those claims with false allegations, and then continued to prosecute those claims hoping to extort a settlement. This is precisely the situation in which Congress intended for a prevailing defendant to recover its attorneys' fees under the FDCPA. b. Defendant is entitled to recover its reasonable attorneys' fees and costs because Plaintiff's FCCPA claim has failed to raise a justiciable issue of law or fact In pertinent part, the FCCPA provides: "If the court finds that the suit fails to raise a justiciable issue of law or fact, the plaintiff is liable for court costs and reasonable attorney's fees incurred by the defendant." Fla. Stat. § 559.77(2). As such, the Court need not find that Plaintiff's claims were brought in bad faith and for purposes of harassment in order to award fees under the FCCPA; the Court is only required to find that the claims were frivolous. Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 20 of 22 PageID 144 21 Defendant is entitled to recover the reasonable attorneys' fees and costs that it incurred defending itself against Plaintiff's FCCPA claim because it has clearly failed to raise a justiciable issue of law or fact. As explained above, Plaintiff's claim is based on false allegations pertaining to the date the Letter was mailed, as well as false allegations pertaining to the continued contact after receipt of the Letter. Accordingly, Defendant is entitled to recover its reasonable attorneys' fees and cost pursuant to the FDCPA and FCCPA. 15 U.S.C. § 1692k(a)(3); Fla. Stat. § 559.77(2). WHEREFORE, Defendant respectfully requests that this Court enter an order granting this motion, entering final summary judgment in favor of Defendant and against Plaintiff with respect to all claims alleged in the Amended Complaint, find that one or more of Plaintiff's claims arising under the FDCPA was brought in bad faith and for purposes of harassment and award Defendant its reasonable attorneys' fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), find that Plaintiff's claim arising under the FCCPA failed to raise a justiciable issue of law or fact and award Defendant its reasonable attorneys' fees and costs pursuant to Fla. Stat. § 559.77(2), and grant Defendant such other and further relief as the Court deems just and proper. /s/ John P. Gaset Robert E. Sickles, Esq. Florida Bar No. 167444 rsickles@broadandcassel.com John P. Gaset, Esq. Florida Bar No. 98415 jgaset@broadandcassel.com BROAD AND CASSEL 100 North Tampa Street Suite 3500 Tampa, Florida 33602 Telephone: 813-225-3039 Facsimile: 813-225-3070 Secondary: knovak@broadandcassel.com Counsel for Defendant Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 21 of 22 PageID 145 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 16, 2016, this document was electronically filed with the Clerk of Court using the ECF electronic filing system which electronically notifies the following: W. John Gadd, Esq. 2727 Ulmerton Road, Suite 250 Clearwater, FL 33762 wjg@mazgadd.com Counsel for Plaintiff Lisa R. Wilcox, Esq. 721 First Ave. N., Suite 100 St. Petersburg, Florida 33701 lisa@wilcoxlawpa.com Counsel for Plaintiff /s/ John P. Gaset John P. Gaset, Esq. Florida Bar No. 98415 jgaset@broadandcassel.com Case 8:15-cv-01107-RAL-JSS Document 29 Filed 12/16/16 Page 22 of 22 PageID 146 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 1 of 7 PageID 147 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 2 of 7 PageID 148 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 3 of 7 PageID 149 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 4 of 7 PageID 150 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 5 of 7 PageID 151 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 6 of 7 PageID 152 Case 8:15-cv-01107-RAL-JSS Document 29-1 Filed 12/16/16 Page 7 of 7 PageID 153 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 1 of 17 PageID 154 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 2 of 17 PageID 155 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 3 of 17 PageID 156 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 4 of 17 PageID 157 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 5 of 17 PageID 158 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 6 of 17 PageID 159 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 7 of 17 PageID 160 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 8 of 17 PageID 161 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 9 of 17 PageID 162 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 10 of 17 PageID 163 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 11 of 17 PageID 164 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 12 of 17 PageID 165 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 13 of 17 PageID 166 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 14 of 17 PageID 167 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 15 of 17 PageID 168 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 16 of 17 PageID 169 Case 8:15-cv-01107-RAL-JSS Document 29-2 Filed 12/16/16 Page 17 of 17 PageID 170 fexce•FI 2350249Z2 TAMPA -FL 335SAT PETERSBURG Ft14. 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